Citation Nr: A25035254 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210811-178899 DATE: April 16, 2025 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDING OF FACT The probative evidence of record demonstrates that the Veteran's service-connected PTSD prevents him from securing and following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from February 1967 to September 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held in January 2025. Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c) (2018); 38 U.S.C. § 7107(a)(2) (2012). TDIU Entitlement to a TDIU VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The relevant question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in February 2021 and listed his service-connected PTSD as the cause of his unemployability. The Veteran's combined disability rating has been 70% from May 10, 2017. Thus, the schedular criteria for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a) have been met. The Veteran's service-connected disabilities are: PTSD, rated as 70 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. The record shows the Veteran's employment history indicates that he worked as a truck driver from 2002 to 2013. See February 2021 VA 21-8940; July 2019 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. He indicated his highest level of education completed was three years of college. He stated he retired from that job due to his PTSD. Specifically, he reported that he "couldn't handle the stress anymore," complained of having experienced increasing difficulty tolerating traffic and driving demands, and indicated that he has not attempted to return to work, at least partly because he will often go for as long as five days without leaving his home due to social discomfort. See February 2021 VA examination. There are two medical opinions of record regarding the Veteran's ability to work. A VA licensed social worker opined that, due to the chronic and severe nature of the Veteran's PTSD, he is unemployable. The social worker further opined, "If he were to attempt to work again...the stress of the work environment would put him at risk of harm or he would be a risk of harm to others." See February 2019 Psych Letter. A VA psychiatrist opined, "Because of symptoms and chronic struggles above, and work stress exacerbating symptoms, it would be difficult for him to sustain employment in a productive way." See February 2019 Opinion. There is no opinion of record to the contrary. Upon review of the record, and after resolving all doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted, based on the effect of his service-connected PTSD. This disability as likely as not renders the Veteran unable to obtain or maintain gainful employment. Accordingly, entitlement to a TDIU is warranted. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (responsibility for the ultimate TDIU determination is on the VA, not a medical examiner). Cory M. Picton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.